Since October 2004 every employer, no matter how big or small, has to have at the very least the minimum legal procedures in place for dealing with grievances, dismissals and disciplinary action. Importantly, every employee now has a duty to follow the correct procedure if they have a grievance they want to raise.
Failure by either party to comply with the procedures can count against them at a later date with some fairly disastrous consequences.
For example an employee is expected to have written to an employer about the grievance and allowed them 28 days to respond. If they don’t an employment tribunal will not accept their claim. Not following procedure can also result in any compensation a tribunal awards being reduced by up to 50%. An employer who doesn’t follow procedure may find that they have to pay increased compensation or a finding can be made by the tribunal that a failure to follow the correct procedure in full is automatically a case for unfair dismissal.
By law, within two months of starting work an employee should receive written details about their job, such as pay and hours, as well as details of the disciplinary and grievance procedure in place and who should be told if the employee has a grievance.
How to raise a grievance:
If an employee has a problem at work then it is probably always best to try and resolve matters informally first. Employees should try and speak to the appropriate person (usually their line manager) about any concerns they have about their work.
If the problem is with that person and it just isn’t appropriate then they should go to the next senior person. Hopefully this should result in the problem being sorted out but if not the employee may need to consider raising a formal grievance.
Even though the grievance is only being dealt with on an informal basis at this time the employee should still keep a note of what was said, when, and by whom.
Formal Grievance Procedure:
As stated above the law says that employers must have at least the minimum grievance procedure in place, which is the following three step procedure. Some employers may have more than these three steps but however many there are they must always be included.
Step 1: The Written Statement:
The employee must send their employer a written statement or letter detailing the grievance. The letter should be clear and should contain all grievances listed under separate headings if appropriate. It may also be useful for the employee to suggest a way the problem could be resolved. For an example of an appropriate grievance letter see our employment precedents here.
It is vitally important that the letter is dated in order for the employee to be able to show any tribunal that they have waited the necessary 28 days before making an application. The employee should also always keep a copy of any letter they send.
Step 2: The Meeting:
Upon receipt of the formal letter the employer must arrange an appointment to discuss the grievance. The employer can give themselves some time to investigate the grievance but the meeting should be arranged as soon as possible.
The meeting must be held at a time and place which is suitable for the employee. The employee is allowed to be accompanied to the meeting by someone they work with or a trade union official and so the meeting should be convenient for them as well.
The employee has a duty to attend the meeting. If they don’t then again they may be found at fault for not completing the procedure and penalised by any future tribunal.
If for any reason the employee cannot attend then the employer must arrange another. If the employee is unable to attend this second meeting then the employer is under no further duty to arrange another meeting and the procedure is seen to have been complied with fully.
At the meeting the employee should try to stay calm and collected and put forward their grievance best they can. Preparation is really to key to a successful meeting so the employee may like to make some notes before hand on what they are going to say. They should certainly try and take notes of what is said during the meeting and who is attending.
When the meeting comes to an end the employer will announce their decision.
The employee has a right to appeal any decision and should use their right to appeal before applying to the employment tribunal. If they do not then again they may find their compensation reduced for failing to comply.
Step Three: The Appeal Meeting:
If the employee wishes to appeal then they should write to their employer as soon as possible telling them. The employer will then arrange a further meeting, again at a reasonable time and place and again the employee will have a duty to attend.
If one is available a more senior manager should deal with the appeal.
At the end of the meeting the employer will let their decision be known. If the employee is still not happy with the outcome or feels that matter has not been dealt with properly they can consider an application to the employment tribunal.
Grievances of former employees:
Because of the need to follow procedure, if a former employee has an outstanding grievance after they have left the job they should still try and follow the appropriate steps so as to avoid being penalised at any subsequent tribunal. An example of when this would be appropriate is where there is a complaint of constructive dismissal i.e. where an employee resigns because of the way they are treated by an employer.
If the normal three step procedure has not been completed before the employee left and if both employee and employer agree to it in writing a shorter two step procedure can be followed.
In the two step process the employee must put their grievances forward in a letter or written statement and the employer should reply in writing addressing the issues raised.
Importantly the employee must wait 28 days from the date of their letter before issuing a tribunal claim even if the employer replies earlier.
Grievance and disciplinary procedures:
If an employee is subject to disciplinary proceedings and feels that they wish to raise a grievance about it then normally that complaint can be dealt with by the disciplinary process and a separate grievance procedure needn’t be raised.
But if an employee feels that the disciplinary action is unfair or discriminatory then they should write a grievance letter to their employers. If this is done before the disciplinary appeal hearing then the grievance will be deal with within the disciplinary process. If it is raised after the disciplinary appeal hearing then the full grievance procedure must be followed.
An employee will therefore only need to start a grievance over a disciplinary or dismissal matter if:
They are complaining about discrimination;
The disciplinary action/dismissal reason was wholly unrelated to the employer’s stated reason;
They are complaining about constructive dismissal.
When is the grievance procedure not appropriate?
Sometimes it simply isn’t appropriate to expect an employee or employer to follow a set grievance procedure. Set out below are some of the reasons that might be relied upon. It will be for the party who failed to comply to convince any tribunal that there were genuine reasons for not following the procedure so as much evidence as possible (e.g. doctors letters or statements confirming threats etc) should be kept.
- Where it would be appropriate to use a collective procedure. For example where a number of employees are affected by the same problem they could be represented by a union official or union rep or employee representative who has been elected to deal with the matter. The employer must have agreed to this approach.
- If there are genuine concerns of threats of violence to people or property.
- If the employee feels that they have suffered harassment and will suffer further harassment by following the procedure.
- If it will not be practicably possible to complete the procedure within an appropriate time i.e. because of serious illness.
- If the employee has left their job and it is not practicable to write to their former employer e.g. if they are living abroad or untraceable.
For employer’s there are also certain circumstances where they are able to dismiss or discipline an employee without going through the appropriate procedures. These are:
- A collective redundancy when more than 20 employees will be made redundant and the employer is consulting with trade union officials or an elected employee representative.
- When a group of staff are laid off and re-hired immediately under different terms and conditions.
- Where employees are dismissed for taking industrial action.
- Where it would be illegal to continue the employment.
- Sudden and unforeseen stoppage of business e.g. when a factory burns down.